5.  The applicant was born in 1967 and lives in Suwanee, the United States of America (“the U.S.”).
6.  In 1993 the applicant married D.B. in the U.S. state of Georgia. The couple both had American and Romanian citizenship. They had three children: A.H.B who was born on 25 March 1998, and twins, N.A.B. and P.N.B., who were born on 19 October 2000. The parents had joint custody of the children under U.S. law. They all lived in the U.S.
7.  On 1 May 2007 the Superior Court of Forsyth County in the U.S. issued an injunction forbidding the applicant and his wife from removing their children or settling outside the jurisdiction of the said court without its express permission.
8.  On 14 August 2008 the applicant signed a notarised form authorising his wife to leave the U.S. with their three children on 5 September 2008 for a short holiday to Romania on condition that she returned the children to the U.S. at the end of the holiday period.
9.  The applicant’s wife failed to return the children to the U.S. and on 14 October 2008 she instituted divorce-and-custody proceedings against the applicant before the Braşov District Court in Romania.
10.  On 19 December 2008 the applicant filed for divorce and custody of his children with the Superior Court of Forsyth County.
11.  On 13 January 2011 the Superior Court of Forsyth County dismissed the applicant’s action for insufficient notice of the trial and lack of jurisdiction. It held that the divorce proceedings instituted by the applicant’s wife on 14 October 2008 were regulated under Romanian legislation. In addition, the Romanian jurisdiction applied to the two spouses because they were both Romanian citizens, held Romanian nationality and their children lived in Romania. The applicant appealed against the judgment.
12.  On 14 December 2011 the Georgia Court of Appeal dismissed the applicant’s appeal against the judgment of 13 January 2011.
13.  On an unspecified date the applicant submitted a request for the return of his three under-age children to the U.S., under Article 3 of the Hague Convention, to the U.S. Central Authority responsible for the obligations established by the Hague Convention. On 11 December 2008, the U.S. authority submitted the request to the Romanian Ministry of Justice. The applicant argued that his children had been unlawfully removed from U.S. territory by his wife, in breach of the joint-custody agreement between the spouses at the time of the removal.
14.  On 12 December 2008 the Romanian Ministry of Justice contacted the applicant’s wife, informed her about the Hague Convention request lodged by her husband and asked her to express her position on a potential friendly settlement of the case and voluntary return of the children to the U.S.
15.  On 14 January 2009 a private psychologist’s practice produced a psychological evaluation report concerning the applicant’s children. The report concluded based on tests and a psychological interview with the children that they were extremely affectionate; had a maternal fixation; had a need for safety, security and stability; they feared authority and unknown circumstances; felt anxiety in respect of the troubled family situation; wished to reject or quash any threat and had a defensive attitude. The report also noted that at the time of the examination the children were well balanced emotionally, were willing to communicate and cooperate, were expressive, adapted to the situation and willing to integrate and did not show any discordant behavior.
16.  On 4 February 2009, the Romanian Ministry of Justice, acting as the Central Authority responsible for the obligations established by the Hague Convention, instituted proceedings on behalf of the applicant, who was represented by a lawyer of his choosing, before the Bucharest County Court.
17.  By an interlocutory judgment of 2 March 2009 the Bucharest County Court adjourned the proceedings so that the applicant’s wife could prepare her defence, the children could receive psychological counselling prior to being heard by the court and the Braşov Guardianship Authority could prepare a social inquiry report on the children’s living conditions, family situation and adjustment to the new conditions in Romania. The applicant was present at the hearing and submitted documentary evidence and requests before the court through his legal representative.
18.  On an unspecified date the Braşov Guardianship Authority produced the social inquiry report ordered by the court. It concluded that the mother knew best and was most responsive to the children’s development needs. She had decided jointly with the children to leave the marital home and the children refused to return to the former family environment which they considered hostile as a result of the father’s abusive behavior. It noted inter alia that according to the children they had not perceived their father as a model and disapproved his abusive behavior. They referred to restrictions and physical punishments which they had considered unfair. They had witnessed their parents’ disputes and they had perceived their mother as a victim. Consequently, they empathised with her. In the case of divorce they wished to live with their mother because they felt close to her and because she had constantly supported them both morally and affectively. They wished to remain in the mother’s custody and from the beginning they had been happy with the idea of moving to Braşov. They had been familiar with the new environment because they had often visited their maternal grandparents during the holidays and had contact with the mother’s extended family. They had been enrolled in school and they were adapting gradually to the new situation. They had made friends and the language barrier problem had almost disappeared.
19.  By interlocutory judgments of 13 and 15 April 2009 the Bucharest County Court adjourned the proceedings after allowing the parties to submit oral and written submissions and pending deliberation.
20.  On 16 April 2009 the Bucharest County Court dismissed the applicant’s action on the basis of testimonial and documentary evidence, the social inquiry report produced by the Braşov Guardianship Authority, and the children’s testimonies heard by the court after they had attended counselling sessions organised by the Bucharest Social Assistance and Child Protection Agency. It held that after the children had arrived in Romania they had settled in Braşov together with their mother and had been enrolled in school. The social inquiry had shown that the children had been familiar with the new environment because they had often spent their holidays there with their maternal grandparents and with their mother’s wider family. However, according to the decision of the U.S. courts and the available evidence, the applicant enjoyed joint custody of the children and had a right to decide where they should live. Moreover, while the applicant had agreed that the children could leave the U.S., his wife’s failure to return them to the U.S., the country of their habitual residence, was unlawful. Although, the applicant and his wife had discussed the option to leave the U.S. and to return to Romania, a final decision had not been taken in that regard prior to her departure. Furthermore, her argument that the applicant’s strict social and religious upbringing of the children posed a serious risk if they were to return to the U.S. and would expose them to physical and psychological harm, within the meaning of Article 13 § 1 (b) of the Hague Convention, was unfounded. However, citing the Elisa Perez-Vera Explanatory Report and Article 13 § 2 of the Hague Convention, and taking into account the available evidence, the court held that the children’s views concerning the essential question of whether they should return to the U.S. or remain in Romania could be decisive, because they had attained an age and degree of maturity sufficient for their views to be taken into account. This was the only reason the court refused to order their return to the U.S. In this context, it acknowledged that the twins were less than ten years old at the time, an age considered by Romanian law to be the minimum age for the views of a child to be taken into account. However, A.H.B. was eleven years old and she had stated freely and unequivocally that she wished to stay in Romania, where the children were integrated in their new school and extra-curricular environment. Consequently, the opinion of the twins could not be ignored by the court, given that it was not in the best interests of the children to be separated and that their potential return to the U.S. would generate new and potentially traumatic circumstances affecting their psychological development.
21.  The applicant, represented by his lawyer, and the Romanian Ministry of Justice appealed on points of law (recurat) against the judgment. He argued that the County Court had misinterpreted the provisions of the Hague Convention and that its decision interfered with the jurisdiction held by the U.S. courts in respect of custody matters. Also, the court had failed to provide any reasons why it considered all his children sufficiently mature in order to rely on their opinion. He argued that allowing A.H.B. to make decisions also for her siblings was unacceptable. The Romanian Ministry of Justice argued on behalf of the applicant that the court had incorrectly assessed the evidence in the file and had considered the opinion of an eleven year-old sufficient for its decision. Since there was no evidence in the file to suggest that the children’s return to the U.S. would expose them to serious harm, the Romanian authorities had a duty to return them to their State of habitual residence.
22.  By an interlocutory judgment of 3 June 2009 the Bucharest Court of Appeal adjourned the proceedings pending the receipt of procedural information it had requested from the Bucharest County Court and in order to allow the applicant’s wife to prepare her defence.
23.  On 24 June 2009 the Bucharest Court of Appeal allowed the applicant’s appeal on points of law, quashed the judgment of 16 April 2009 and ordered a retrial. It noted of its own motion that the interlocutory judgment of 13 April 2009 postponing the date of the decision was missing from the file. Therefore, the appellate court was unable to determine whether the applicant’s right to a fair trial and of access to court had been observed by the judicial authorities.
24.  On 28 July 2009 the case file was re-registered on the Bucharest County Court’s docket.
25. By interlocutory judgments of 14 September, 7 October and 4 November 2009 the Bucharest County Court adjourned the proceedings in order to examine a request by one of the judges to abstain; to allow the parties to submit written observations and evidence, including documents obtained by the applicant from the U.S. State Department attesting that the unlawful failure to return children to the U.S. was a federal offence; and to deliberate.
26.  By a judgment of 24 November 2009, following a second set of proceedings, the Bucharest County Court dismissed the applicant’s action. It acknowledged, by referring also to the decision of the U.S. court of 1 May 2007, that the applicant shared the custody of his children, that their removal from the U.S. had been unlawful and that their return to that country in spite of the applicant’s wife’s claims of inter alia physical corrections applied to the children, would not expose them to physical and psychological harm within the meaning of Article 13 § 1 (b) of the Hague Convention. However, by relying on the Elisa Perez-Vera Explanatory Report, the children’s views had been considered decisive for the court’s decision to dismiss the applicant’s action.
27.  The applicant, through his legal representative, and the Romanian Ministry of Justice appealed on points of law against the judgment. They argued, inter alia, that the County Court had failed to acknowledge that by unlawfully removing the children from the U.S., their mother had breached U.S. laws. Moreover, the court had ignored the U.S. legislation and the decisions of the U.S. courts. They were wrong to have considered as conclusive the views of children who had not attained an age and a degree of maturity sufficient for their views to be taken into account. Furthermore, the courts had misinterpreted the provisions of the Hague Convention and of the domestic legislation. Lastly, by dismissing his action, the Romanian courts had transferred the jurisdiction of the U.S. courts concerning divorce and custody matters to the Braşov District Court.
28.  On 12 February 2010, relying on Article 11 of the Hague Convention, the applicant submitted a request for a statement on the delay in the proceedings instituted by him for the return of his children with the Bucharest County Court. He argued that the repeated delays caused by the Romanian authorities in examining his case, including by not respecting the statutory ten-day time-limit for the reasoning of the judgment, had breached his right to a trial within a reasonable time guaranteed by Article 6 of the European Convention on Human Rights.
29.  On 25 February 2010 the Bucharest County Court acknowledged the applicant’s request of 12 February 2010 and informed him that the judgment it had delivered on 24 November 2009 had been reasoned and communicated to the parties and the case file had been archived on 23 February 2010.
30.  By interlocutory judgments of 18, 25 and 29 March 2010 the Bucharest Court of Appeal adjourned the proceedings for deliberations and in order to allow the applicant’s wife to submit written observations.
31.  By a final judgment of 25 March 2010 the Bucharest Court of Appeal dismissed the applicant’s appeal on points of law. It held that, although the children had dual nationality, they had been born and had resided in the U.S. In addition, there was no evidence in the file that the applicant had not had custody rights over them or that he had not exercised them immediately prior to their departure. Consequently, their retention in Romania by their mother against the applicant’s will had been unlawful. However, it noted that the provisions of the Hague Convention, as interpreted also by the Elisa Perez-Vera Explanatory Report, suggested that the best interests of the children were at the heart of the unlawful removal principles regulated by the said Convention and the exceptions thereto. Consequently, the lower court’s decision to refuse the return of the children to the U.S. by relying on Article 13 § 2 of the Hague Convention – after examining both parties’ submissions and the particular schooling and extra‑curricular circumstances of the children, and declaring the mother’s refusal to return them unlawful – was not contradictory and did not amount to a misinterpretation of the Hague Convention.
32.  The court further noted that according to the available evidence that the parties had wished for their children to maintain strong ties with Romania. However, it dismissed the applicant’s wife’s argument that through his actions and behavior at the moment of their departure from the U.S., the applicant had agreed to settle the children’s residence in Romania and that therefore the retention had been lawful within the meaning of Article 13 § 1(a) of the Hague Convention. At the same time, the refusal to order the return of the children was based on Article 13 § 2 of the Hague Convention; it did not amount to a transfer of jurisdiction to the Romanian courts in respect of custody matters because the Hague Convention itself provided for the refusal to return in exceptional circumstances and gave precedent to the child’s best interest. The decision of the lower court could not change the fact that the parties and their children were also Romanian nationals, a factor that may be considered relevant by a court when determining its competence to examining the custody proceedings; something that this court was not lawfully allowed to do.
33.  Moreover, the children, the eldest of whom was approximately twelve years old, had been heard by the first-instance court in the presence of a psychologist and after counselling sessions. They had all freely and unequivocal stated, in the absence of any parents or relatives, that they did not wish to return to the U.S. The children had shown a sufficient degree of maturity in expressing their opinions. They understood their situation and made logical assessments which were not plagued by contradictions concerning their relationship with their parents, their future perspectives in the two countries and their views on family life. In this context, the argument that the twins were under ten years old at the time and that therefore their opinions could not be considered relevant for the case was unfounded. In addition, the lower court’s reliance on Article 13 § 2 of the Hague Convention was also justified by A.H.B.’s clear refusal to return to the U.S. Her refusal was compelling and had been expressed at an age and maturity which fulfilled the requirements set out in Article 13 § 2 of the Hague Convention. According to the evidence and the psychological evaluation reports available in the case file, the connection between the three siblings was very strong. Consequently, an assessment that the twins did not show a sufficient degree of maturity in expressing their opinions would not serve the best interests of the children. A separation of the siblings would be traumatic and would have a detrimental impact on their future psychological development. Also, according to the conclusions of the psychological evaluation reports the children’s separation from the current environment would result in a serious risk for them. Furthermore, there was no evidence in the file to support the applicant’s argument that his wife had denied him personal relations with his children and had deprived him of his family life. In addition, the present case did not concern custody rights; consequently, the court dismissed the applicant’s argument that under the domestic legislation it should not attach more weight to the children’s statements than to those of the parent exercising his parental rights or that by doing so it had discriminated against him in relation to his wife.
34.  By attaching more weight to the children’s best interest, the court further held that the return of the children to the U.S. against their will could have only destabilized them and subjected them to new pressure, which could have negatively influenced their future development, given that the relationship between their parents had radically changed since they had left the U.S. Lastly, the Court of Appeal considered that the first-instance court had correctly interpreted the provisions of the Hague Convention. It had not misinterpreted the provisions of Article 12 §§ 1 and 2 of the Hague Convention, given that its decision had been based on the best interests of the children, as required by Article 13 § 2. In addition, it considered that the first-instance court would have been forced to order the return of the children only if after it had examined the circumstances of the new environment the children enjoyed, it would have found that their health and future development had been endangered.
35.  By an interlocutory judgment of 20 February 2009 the Braşov District Court allowed the parties’ request seeking the suspension of the custody and divorce proceedings pending the outcome of the Hague Convention proceedings, and ordered the postponement of the trial.
36.  By an interlocutory judgment of 18 June 2010 the Braşov District Court reopened the divorce-and-custody proceedings at the parties’ request and allowed them to submit documentary and testimonial evidence. In addition, it ordered a social inquiry report on the applicant’s living conditions in the U.S. through an international rogatory commission.
37.  On 30 September 2010 the Romanian Ministry of Justice informed the Braşov District Court that it had forwarded the court’s request for a social inquiry at the applicant’s home in the U.S. to the relevant American authorities with the aid of the U.S. State Department. At the same time the Ministry of Justice informed the court that the international rogatory commission proceedings would take between six months and a year.
38.  By interlocutory judgments of 13 December 2010, and 18 March and 10 June 2011, the Braşov District Court adjourned the proceedings repeatedly in order to allow the parties to submit evidence and for procedural reasons. In addition, it dismissed the applicant’s request to reiterate its request for a social inquiry at his home through the international rogatory commission proceedings on account of the information note of 30 September 2010. At the same time it allowed the applicant’s request to adjourn the proceedings for a longer period of time pending the receipt of documents requested from the U.S.
39.  At the hearing of 2 September 2011 the applicant raised a preliminary objection, arguing that under the Hague Convention and Council Regulation no. 2201/2003 of 27 November 2003 on jurisdiction and the recognition and enforcement of judgments in matrimonial and parental responsibility matters (“the Council Regulation”), the Romanian courts did not retain jurisdiction in respect of divorce-and-custody proceedings as a similar action was pending before the U.S. courts. In addition, the children’s habitual residence prior to their unlawful removal was in the U.S. Consequently, the courts in the U.S. retained jurisdiction in respect of child‑custody matters. Lastly, the U.S. courts had issued an injunction forbidding the removal of the children from their jurisdiction.
40.  By an interlocutory judgment delivered the same day, the Braşov District Court dismissed the applicant’s preliminary objection. It held that under the relevant domestic legislation the Romanian courts had jurisdiction in respect of proceedings concerning divorce and custody matters instituted by Romanian citizens living abroad. The applicant, his wife and their children were Romanian citizens and their civil-status papers had been registered in Romania. In addition, the Romanian courts had dismissed the applicant’s action seeking the return of his children to the U.S. The children had been residing in Romania with their mother since September 2008 and were well adapted to their new living conditions. Consequently, under the Hague Convention the jurisdiction of the U.S. courts had ceased from the time the children had been settled in Romania, that is after the Romanian courts had dismissed the applicant’s request for the return of his children. Moreover, the Council Regulation could not be applied to the present case because it concerned only situations where both parties were European residents. The court adjourned the proceedings for procedural reasons.
41.  By interlocutory judgments of 30 September and 11 November 2011 the Braşov District Court ordered that the separate set of proceedings which D.B. had instituted against the applicant seeking an injunction for his agreement to the children being issued a Romanian passport and to their travelling abroad be joined to the divorce-and-custody proceedings. In addition, the court allowed the parties’ request for evidence, including testimonial evidence. It adjourned the proceedings pending the submission of evidence and for procedural reasons.
42.  By an interlocutory judgment of 21 November 2011 the Braşov District Court dismissed the applicant’s preliminary objection concerning the Romanian courts’ lack of jurisdiction in respect of the proceedings regarding the injunction requested by his wife. It held that the proceedings were subsidiary to the divorce-and-custody proceedings and that the court had already ruled that the Romanian courts had jurisdiction in matrimonial and custody matters. The court reiterated the arguments it had relied on in the interlocutory judgment of 2 September 2011. It dismissed the application for the suspension of the proceedings before the Romanian courts pending the outcome of the divorce proceedings instituted by the applicant against his wife before the U.S. courts. It held that the suspension request was unfounded given the provisions of the Council Regulation. Also, it had already been ruled that the Romanian courts held jurisdiction in respect of the proceedings to which the applicant was party, and the Superior Court of Forsyth County in the U.S. had acknowledged that decision. The court adjourned the proceedings pending the submission of evidence by the parties.
43.  By interlocutory judgments of 23 January, 5 March, 14 May, 30 July and 24 September 2012 the Braşov District Court adjourned the proceedings pending the submission of evidence by the parties, the receipt of information about the applicant’s income from his employer and the outcome of the international rogatory commission proceedings conducted by the Ministry of Justice in order to hear the foreign nationals chosen by the applicant to testify on his behalf.
44.  By an interlocutory judgment of 27 May 2013 the Braşov District Court adjourned the proceedings in order to allow the applicant to submit a written declaration stating his intention or refusal to pay for the travel expenses of the witnesses he had asked for and who were living abroad.
45.  By an interlocutory judgment of 10 June 2013 the Braşov District Court dismissed the applicant’s request that the court order the Ministries of Justice and Foreign Affairs to contact the U.S. authorities in order to hear the American witnesses selected by the applicant. It held that since the proceedings had started, it had repeatedly issued such orders without any results for the case. In addition, Article 1 of the Hague Convention acknowledged that the civil-procedure rules applied to the administration of evidence before the first-instance court. Consequently, it turned down the applicant’s request to have American witnesses heard because he had refused to pay their travel expenses to Romania in order to appear before the court. Lastly, it allowed the applicant’s request to adjourn the proceedings pending the submission by his wife of documentary evidence regarding her income.
46.  By an interlocutory judgment of 20 June 2013 the Braşov District Court dismissed a request submitted by the applicant to replace the foreign witnesses who could not be heard, on the ground that the lawful requirements for witness replacement had not been met. It adjourned the proceedings for deliberations.
47.  By a judgment of 26 June 2013 the Braşov District Court allowed in part an action lodged by the applicant’s wife. It took into account the children’s best interests and relied on the children’s testimonies of 14 December 2012, other documentary and testimonial evidence and a social inquiry report produced by the Braşov Guardianship Authority in respect of the children’s living conditions, their social and educational development, and their relationship with their father and his family since their departure from the U.S. It held that both spouses were responsible for the divorce. Also, it considered that a request by D.B. to maintain her married name even after the divorce had been finalised was in her best interests and those of the children. In awarding sole custody of the children to their mother, it ordered that the children live with their mother and that their father pay monthly maintenance. Moreover, it ordered the applicant to agree to passports being issued in his children’s names and to their occasional travel abroad accompanied by their mother. It granted the applicant visiting rights at their mother’s home. The applicant appealed against the judgment.
48.  By a judgment of 13 December 2013 the Braşov County Court allowed in part the applicant’s appeal and amended the judgment of the first-instance court. In particular, it awarded the applicant joint custody of the children and yearly visiting rights for a month during the summer holiday and for a week during the winter holiday. It also granted the applicant the right to take the children to his home in Romania or the U.S. or to leave the country with them during the periods they were allowed to spend time together. The applicant’s wife appealed on points of law against the judgment.
49.  By a final judgment of 12 March 2014 the Braşov Court of Appeal allowed his wife’s appeal on points of law against the judgment of 13 December 2013, quashed the said judgment and upheld the judgment delivered by the first-instance court on 26 June 2013.